Application for interim order under s 8(2) Judicature Amendment Act 1972 against removal pending determination of the judicial review proceedings.

Disclaimer

This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.

High Court Auckland CIV-2008-404-000178 12 March 2008; 19 March 2008

COURTNEY J

Introduction

[1] Ms X is an Iranian national who arrived in New Zealand in 2005 and immediately sought refugee status. There were two main aspects to her claim that she would face persecution if she returned to Iran. The first was that her brother, AB, had an unfavourable profile with the Iranian authorities as a result of a speech made in Korea in 2002 and also his and his other brothers' conversion to Christianity. The second was Ms X's own recent conversion to Christianity.

[2] After being refused refugee status Ms X appealed unsuccessfully to the Refugee Status Appeals Authority. Arrangements have been made to remove her from New Zealand on 25 March 2008. However, she has applied for judicial review of the Authority's decision, which is to be heard in July 2008. She seeks interim relief under s 8(2) Judicature Amendment Act 1972 by way of a declaration that the second defendant not take steps to remove her pending determination of the judicial review proceedings.

[3] The approach to be taken to an application under s 8 was summarised by the Supreme Court in Minister of Fisheries v Chief Executive of the Ministry of Fisheries & Ors [2007] NZSC 101, citing Carlton & United Breweries v Minister of Customs [1986] 1 NZLR 423 at 430:

Before a court can make an interim order under s 8 of the Judicature Amendment Act 1972 it must be satisfied that the order sought is reasonably necessary to preserve the position of the applicant. If that condition is satisfied the Court has a wide discretion to consider all the circumstances of the case, including the apparent strengths or weaknesses of the applicant's claim for review, and all the repercussions, public and private, of granting interim relief.

[4] In the immigration context the extent to which the merits of the case are to be considered was described by Hammond J in Esekielu v Attorney-General (1993) 6 PRNZ 309:

Whilst the individual applicant should not be required to demonstrate a very strong probability of success on the merits, the kind of matters that that individual must establish in support of the claim to interlocutory relief must be more than a showing that the question is not really trivial. I would have thought both that there must be a real contest between the parties and that the applicant has a respectable chance of succeeding in that contest.

Authority's decision and the grounds of challenge to it

[5] The manner in which Ms X's appeal was conducted was slightly unusual and requires a short explanation. When Ms X arrived in New Zealand in 2005 three of her brothers were already here and had refugee status. AB's wife and child were also here and appeals against the declinature of their applications for refugee status were being heard. Ms X appeared before the Authority and gave evidence in support of her sister-in-law's appeal.

[6] Ms X's sister-in-law, in turn, gave evidence in support of Ms X's appeal, which was heard a few months later. At that stage the sister-in-law's appeal had not been determined because the Authority was in the process of making its own enquiries about certain aspects of her claim. Further, it became apparent that both Ms X and her sister-in-law were relying on the same evidence provided by and about AB. The Authority recorded the following agreement with each counsel representing Ms X and her sister-in-law:

[8] It was agreed that because of the overlapping evidence the hearing of the two appeals would henceforth proceed together although the two appeals would be treated as separate and distinct.

[7] The Authority delivered its decision dismissing the appeal by the sister-in-law and her child in December 2006. During 2007 it made further enquiries relevant to Ms X's appeal and in December 2007 delivered its decision dismissing her appeal. The reasons given by the Authority for dismissing Ms X's appeal were, first, that it did not accept that AB had an unfavourable risk profile with the Iranian authorities and therefore there was no risk to Ms X as a result of her family association with him. Secondly, it considered that Ms X had lied about the circumstances leading up to her conversion to Christianity and concluded that her conversion was "essentially instrumental" rather than undertaken for purely spiritual reasons. The Authority, therefore, did not accept that Ms X was at risk of being persecuted because of her conversion to Christianity.

[8] In an application for judicial review the Court will only intervene if the decision or the decision making process exceeds the Authority's power, is procedurally unfair, is based on a misunderstanding of the facts, or discloses an error of law or if the Authority has taken irrelevant matters into account or is so unreasonable that no rational authority could have made that decision (Chief Constable of the North Wales Police v Evans [1982] 1 WLR 1155, 1173; Mercury Energy Limited v Electricity Corp of NZ Limited [1994] 2 NZLR 385, 389). Credibility assessments by the Authority can be amenable to judicial review, including those made on the basis of implausibility, though to succeed the plaintiff would need to show that the decision was so unreasonable that no reasonable authority, properly conducting itself according to law, could have reached the decision it did (B v Refugee Status Appeals Authority HC AK M1600/96 and HC 146/96 23 July 1997 Giles J).

[9] To succeed on her application for judicial review, Ms X will therefore have to demonstrate an error of the kind described. I must consider whether there is a real contest over the errors she alleges and, if so, whether she has a respectable chance of succeeding. Although the statement of claim asserts four errors by the Authority, the application under s 8 was argued on the basis that the Authority:

a) Took irrelevant considerations into account, namely its previous adverse credibility assessments of Ms X's sister-in-law and AB; and

b) Failed to take a relevant consideration into account, namely the fact that Ms X's family had suffered harassment and was of interest to the Iranian authorities.

[10] Mr McAnally, for Ms X, summarised her position as being that the Authority was influenced by the negative inferences it had previously drawn against the sister-in-law and AB. This caused it to view Ms X as being unreliable, to reject the evidence given by Ms X's local church minister and to ignore previous harassment suffered by her family in Iran.

Findings in respect of Ms X's sister-in-law

[11] Mr McAnally submitted that Ms X's appeal should not have been heard along with that of her sister-in-law. There is difficulty with this submission given the agreement by Ms X's counsel that the appeals would proceed in tandem. But in any event I am satisfied that the manner in which the appeals were heard did not, in itself, cause any unfairness. This is because of the commonality of the evidence in both appeals. Ms X relied on the evidence given by her sister-in-law and on information provided by and about AB. Likewise, her sister-in-law relied on Ms X's evidence and the same information provided by and about AB. As a result, the Authority would inevitably have had to make an assessment of the sister-in-law as part of its determination of Ms X's appeal, even if the appeals had been heard separately.

[12] I therefore turn to the specific complaints made about the Authority's decision in relation to the sister-in-law's evidence. Mr McAnally submitted that the Authority wrongly took into account two aspects that related solely to the sister-inlaw's appeal. The first was its conclusion at [72] that:

Another common feature of the stories told by all five family members (and AB) is the role of the agent Essie in organising their travel. The Authority disbelieves most of the claims about this man and considers that Essie is the likely creation of AB on a par with his other inventions.

[13] Both Ms X and her sister-in-law had maintained that their travel from South Korea to New Zealand was arranged by an agent they named as Essie. Ms X gave evidence that Essie had given her a Brazilian passport in November 2004 in order to travel to New Zealand but that that attempt was unsuccessful. She said that in October 2005 Essie provided another false passport, which she used to travel to Shanghai, then Fiji and on to New Zealand.

[14] The agent's involvement was an important and integral part of Ms X's account of how she reached New Zealand using a false passport. On her account, this agent had provided false passports to her on two separate occasions and made the necessary arrangements for her travel from South Korea to New Zealand. Ms X travelled separately from her sister-in-law. The fact that the same agent was named by both as having arranged their respective travel was certainly a matter of interest that the Authority was entitled to take into account. But the important and relevant point was that the Authority was bound to (and did at [72]) specifically consider the part the agent was said to play in Ms X's travel plans. Mr McAnally did not submit that the Authority's findings were not open to it on the evidence, but only that the finding was one that related solely to Ms X's sister-in-law. That is clearly not so.

[15] The next factor that Mr McAnally said related solely to the sister-in-law and which was wrongly taken into account by the Authority was the date of AB's conversion and his marriage to Ms X's sister-in-law. It is set out at [106] in the context of the discussion by the Authority as to whether, in fact, AB was of interest to the Iranian authorities:

[106] AB's conversion to Christianity is a key strand in his and his wife's untruthful story of why they were prohibited from marrying in Malaysia. However the truth of the matter, as was revealed by official Malaysian records, is that, far from being prohibited from marrying because of AB's Christianity, the couple was married following the wife's conversion to Islam, including her taking an Islamic name. The sister-in-law, when asked about AB's church attendance during the three years they lived together in Malaysia, also stated that to her knowledge he had not attended any church services during this period.

[16] Looked at in the context of the surrounding discussion at [105]  [110] it is apparent that the Authority was interested in whether AB had genuinely converted to Christianity, that being one aspect of his alleged unfavourable profile with the Iranian authorities. Mr McAnally submitted that neither the date of AB's conversion nor the circumstances of his wedding were relevant to Ms X's appeal. However the point of [106] is that AB and his wife were married following her conversion to Islam, contradicting the claim that they could not marry because of AB's Christianity, and that AB had not attended church services while they lived in Malaysia. These findings related to AB, not his wife.

[17] Whilst the Authority does refer to the sister-in-law's account, aspects of which were rejected, it does so in relation to its finding about AB. It could not be said that it was the findings it had made about the sister-in-law that were being taken into account. Since AB's position was a fundamental part of Ms X's claim the Authority had no choice but to consider the veracity of the assertions made by and about AB.

Assessment of AB

[18] Whether AB was in fact at risk from the Iranian authorities occupied a substantial part of the Authority's discussion. That was understandable because, from the outset, Ms X's counsel had made it clear that AB's unfavourable profile with Iranian authorities was a major plank in her claim for refugee status.

[19] There were several aspects about AB that troubled the Authority. Of most concern was the question whether AB had travelled between Korea and Iran between 2003 and 2005 without any apparent difficulty. Mr McAnally accepted that whether he had done so was relevant; self-evidently if he had been able to travel freely in and out of Iran without difficulty that fact would inevitably undermine Ms X's assertion that he had a risky profile with Iranian authorities or that she would be persecuted as a result of her relationship with him. Therefore, there was no suggestion that the Authority was in error in considering this issue. I am, nevertheless, going to review the Authority's findings on this point because they put the factors that Ms X says should not have been taken into account in perspective.

[20] The Authority made enquiries with the Korean immigration authorities about AB's travel. Their records showed that AB had travelled in and out of South Korea more than 12 times between September 2002 and September 2005 using five different Iranian passports in his own name. Further, AB was recorded as having returned to Iran on a direct flight on five occasions between September 2003 and September 2004.

[21] AB refused to authorise the release of full details relating to his travel. However, he and his brother GH provided written statements asserting that the Korean immigration authorities' records were unreliable and explaining how those records might wrongly record AB's actual travel. The explanation was that the way people smugglers operate can result in a mismatch between official passport and flight details which showed a person departing from Iran when in fact that did not happen. AB explained that Iranians travelling through Asia to a European country will use an Iranian passport (either their own or a false one) and a ticket to Iran to obtain a boarding pass and exit stamp. However, once in a transit area the agent provides them with a false passport and boarding pass for their actual destination. If for some reason the false passport and boarding pass proved ineffective the person could simply re-enter South Korea or travel to a neighbouring country and from there return to South Korea.

[22] In addition, AB relayed information from the agent Essie that, according to information held by the Korean authorities, AB had left Seoul on 23 January 2003 and returned on 26 August 2003 on the same passport, even though documents showed that he had been living in Korea during that period.

[23] The Authority dealt with these explanations in the following way:

[85] The Authority rejects AB's endeavours to establish that the Korean information is subject to error or inherently unreliable as can be demonstrated by there being a record or him departing South Korea on 23 January 2003 and returning in August 2003 when in fact he was living in Seoul throughout this period.

[86] AB refuses to authorise the Authority to receive a full record of his travel movements from the Korean authorities for the period after September 2002 (the Authority has copies of his Iranian passports issued in November 2000 and November 2001). This would establish the dates of his recorded movements in and out of South Korea and destinations, the Iranian passports he used on each trip, length of stay outside Korea and permits granted to him on his return.

[87] Instead he has provided information from the Iran Air office in Seoul in the form of a brief email to his counsel from a person whose position in Iran Air is not given stating in effect that he had checked all the tickets issued in Korea since 2003-2006 and there was no ticket for AB.

[88] The Authority places no weight on the Iran Air information. AB is untrustworthy and it is possible that he could arrange for such information to be provided. In any event, even if he did not buy his ticket through the Iran Air office in Seoul, as claimed, it does not follow that he did not purchase tickets through some other Iran Air office or travel agency. Indeed if, as AB says, the Korean records correctly show that on five occasions he presented a (false) Iranian passport in his own name and a corresponding ticket to Iran (although he did not actually board the flight) it follows that Iran Air tickets in his name must have been issued.

[89] In the absence of any proper reason for AB refusing to allow full disclosure of his Korean immigration records  the logical and most relevant evidence to prove his claims, along with copies of all his passports  the Authority does not accept AB's (and the appellant's) denials that he has not travelled from Seoul to Iran on five occasions during 2003-2004 as recorded by the Korean authorities.

[24] Although not referred to, AB had given a reason for not allowing the Authority access to his records held by the Korean immigration authorities. In a letter to Ms X's counsel 16 February 2007 he said that because he had not applied for refugee status in New Zealand, he had no obligation to provide the information being sought and was concerned about jeopardising his current status in Thailand.

[25] Given the nature of the information provided by the Korean authorities it is plain that the Authority was entitled to make a finding that AB had travelled back to Iran without suffering any difficulties in doing so. I did not understand Mr McAnally to say otherwise. I have already referred to the significance of a finding that AB was free to travel in and out of Iran without difficulty. If he could do that it was very difficult to accept that he faced persecution from the Iranian authorities and, even less, to accept that his family were at similar risk. This finding went to the heart of Ms X's claim. If, objectively, AB was not at risk from the Iranian authorities then she could not rely on that assertion as a basis for claiming refugee status.

[26] In light of that finding I turn to the factors that Ms X says were wrongly taken into account and consider whether criticism for doing so is tenable. First is the fact that AB had not applied for refugee status in New Zealand even though his three brothers, sister, wife and child had done so. AB had given explanations for not having applied for refugee status but these were rejected by the Authority:

[75] There emerged further concerns about AB. All too apparent was the incongruity of all AB's siblings and his wife and child progressively coming to New Zealand (or Canada) to claim refugee status largely because of the risk to themselves stemming from their family association with AB, while AB himself was unmotivated to seek refugee status.

[76] AB, alerted to the problem, endeavoured to explain the situation by reference to a crippling psychological anxiety which he said would overcome him on every attempt to travel on a false passport to New Zealand or Canada. He even registered with the UNHCR in Bangkok on May 2006 in an endeavour to deflect the Authority's increasing sceptisim. We find that AB's claimed incapacitation anxiety over the use of a false passport that has undermined his various endeavours to come to New Zealand since early 2003 in implausible in the extreme and contradicted by the evidence of his being a seasoned travelled and a proven sophisticated liar.

[27] Mr McAnally submitted that whether AB had sought refugee status or not was not relevant to the plaintiff's status. I agree that, taken in isolation, whether AB had applied for refugee status was not of direct relevance to whether the plaintiff should be regarded as a refugee. However, in terms of making an assessment of AB's true position, which would, in turn, impact on the Authority's assessment of the plaintiff's status, this factor was one that the Authority was entitled to consider. This is because its real relevance lay beyond the mere fact that AB had not applied for refugee status and was properly viewed in the context of his travel to and from Iran as an indicator of whether he really was at risk as well as his general veracity.

[28] The second factor said to have been wrongly taken into account was AB's failure to provide full details of his travel movements. This issue was dealt with at [86] of the decision, to which I have already referred. Mr McAnally submitted that AB's failure to provide the information sought by the Authority, whilst it might not assist Ms X's case, should not cause her to be regarded adversely because she had no control over her brother's conduct.

[29] AB's failure to comply with the Authority's request cannot, of course, be visited on Ms X. However, the decision shows only that AB's failure to provide full details of his travel movements caused the Authority to reject his denials of having travelled to Iran during 2003-2004 and, in the absence of other reliable information about his travel movements, to accept the information provided by the Korean authorities. Having requested access to the information the Authority was bound to deal with AB's response and there can be no complaint about it doing so. Because this factor is so closely intertwined with the issue of whether AB did in fact make several trips back to Iran it is not tenable to suggest that the Authority was not entitled to take it into account as a means of assessing that important issue.

[30] The third factor that is the subject of complaint is the possibility of AB operating an unofficial money exchange business. At [94] and [95] the Authority discussed evidence that suggested AB was involved in a business in Seoul during 2003 and 2004, including a tenancy agreement for a two-year period:

[95] Clearly AB was engaged in business in Seoul during 2003 and 2004. If, as stated by the appellant in GH, he was at this time operating an unofficial money exchange business, which are frequently utilised by Iranians to send funds to Iran, this could possibly explain his frequent trips between Seoul and Iran during 2003-2004. That AB would enter a two-year tenancy agreement for business premises in May 2003 and purchase a hundred percent of the shareholding in an existing Korean company in August 2003 also does not sit well with his description of himself as desperately trying over this period to finding [sic] a means of leaving Seoul and coming to New Zealand and Canada to claim refugee status.

[31] Mr McAnally submitted that the relevance of these findings to the plaintiff's appeal was not at all clear. On the other hand, these findings appear in the part of the decision dealing with AB's activities and, as Mr McAnally accepted, AB's activities were of direct relevance to Ms X's appeal. I consider that the Authority was entitled to look at all aspects of AB's situation, his situation being the main reason that Ms X claimed to be at risk in the event of her return to Iran. The fact that, on the one hand AB claimed to have been attempting to come to New Zealand for the purposes of seeking asylum whilst on the other making business commitments in Korea is obviously a relevant factor in determining whether AB's account of his situation was true.

[32] The final factor Mr McAnally submitted was wrongly taken into account was the sincerity of AB's conversion, which I have already referred to in relation to Ms X's sister-in-law. The conversion to Christianity by Ms X and her brothers, including AB, was a prominent aspect of Ms X's claim for asylum. The Authority was entitled to consider whether the conversion, particularly of AB, was a sincere one.

[33] I consider that the Authority was entitled to take all of these aspects into account. The veracity of the statements by AB tendered to the Authority in support of Ms X's appeal was rightly subjected to searching examination. It could not be said that any of the matters that the Authority took into account in assessing the plausibility of AB's statements were irrelevant. They were legitimate lines of enquiry and AB was given the opportunity to respond to them. There cannot be any serious argument that the Authority was not entitled to make the findings it did in relation to AB.

Did the Authority's assessment of AB influence its assessment of Ms X?

[34] The findings on the various issues discussed above could hardly have been couched in stronger language. Plainly the Authority disbelieved most aspects of AB's account. Mr McAnally submitted that the Authority wrongly allowed its assessment of AB to colour its assessment of Ms X's credibility rather than putting AB's evidence aside and considering Ms X's credibility on the basis of her own evidence. Mr McAnally did not point to any specific aspect of the decision as showing that the Authority had allowed its assessment of AB to colour its assessment of Ms X's credibility. That appeared to be an inference that I was invited to draw from the fact that the Authority had (wrongly) taken into account the aspects of AB's account I have just referred to.

[35] However, there is nothing in the decision to suggest that the Authority approached its assessment of Ms X herself with a negative frame of mind influenced by its assessment of AB. Nor is there any basis on which to draw that inference. The Authority's rejection of AB's statements meant that, whether or not the Authority formed a favourable view of Ms X, her claim for refugee status was seriously undermined. But, after considering AB's position, the Authority turned to examine Ms X's own account of her conversion to Christianity and her travel to and from Korea and, on the face of the decision, did so independently of its assessment of AB. It reached an adverse view of Ms X in relation to both issues as a result of inconsistencies in her account which were quite unrelated to AB.

[36] A major aspect of Ms X's claim for refugee status was her own conversion to Christianity. Associated with this issue was her travel to and from Korea in the period during which she said she was introduced to Christianity. From the earliest stage in her claim for refugee status Ms X had maintained that she left Iran in October 2003 to stay with AB in South Korea. Upon her arrival she discovered that AB and his wife had converted to Christianity and she began to go to church with them. She attended church regularly and was eventually baptised in May 2004.

[37] However, information obtained by the Authority from the Korean authorities showed that Ms X had only entered Korea once, on 12 April 2004, and departed on 12 July 2004. This meant that rather than having been a regular churchgoer in Korea from October 2003-November 2005 she was only there for three months and her baptism on 7 May 2004 took place less than a month after she had arrived. Further, her destination on 12 July 2004 was Tehran and the advice from the Korean authorities was that she travelled there on her own Iranian passport, thus undermining her claim that she would be in danger if she returned.

[38] The Authority rejected as untenable her explanation that she must have been confused about the dates. It also rejected her assertion that the Korean authorities' records were unreliable; she gave an explanation about an attempt to leave Korea for New Zealand and being permitted to enter the transit area but then being told by the agent that she could not, in fact, leave and re-entering Korea using a false passport supplied by the agent.

[39] The Authority's discussion about Ms X's conversion focused almost entirely on the information obtained from and about Ms X. The only exception was the reference to the explanation given by AB as why the information obtained from the Korean authorities about her departure in July 2004 should be regarded as unreliable:

[123] In her written statement 3 September 2007 the appellant re-iterates her claim not to have actually boarded the flight to Tehran. She relies on the fact that evidence has been produced which she says confirms that the Korean records of AB's travel to Tehran and his absence from Korea during 2003 were not correct so the Authority should not therefore rely on the Korean information about herself. This argument has little merit given the Authority's dismissal of AB's wholly unpersuasive attempts to convince us of the unreliability of the Korean records in respect of him.

[40] Since the issue of whether the Korean authorities' records were reliable was raised by Ms X herself by reference to AB's situation the Authority was certainly entitled to refer to its earlier decision regarding that explanation. It is just not realistic to suggest that re-iterating its earlier rejection of this explanation amounts to the Authority wrongly allowing its assessment of Ms X's credibility to be influenced by its assessment of AB.

[41] Having concluded the Korean authorities' records of Ms X's departure in July 2004 were reliable the Authority found that her claims about ongoing attendance at the Church of God in Seoul until late 2005 could not have been true. It concluded that her conversion was part of a plan to eventually travel to New Zealand and claim refugee status based partly on that fact. This conclusion was clearly reached on the basis of information relating only to Ms X and was plainly open to the Authority.

[42] The Authority was unmoved by the evidence of the minister of the church that Ms X has been attending in New Zealand with her brother, GH:

The Authority does not doubt the sincerity of the minister's evidence. However our findings above that the appellant's baptism was stage managed specifically for the purposes of supporting her anticipated refugee claim and the falsity of her claims to have regularly attended the Church of God in Seoul for some eighteen months must limit the weight to be accorded the minister's assessment of the genuineness of the appellant's faith. Nor does the Authority consider that GH's attendance at the church even after he became a resident assists its assessment of the appellant's genuineness. The plan for the appellant to follow her brothers to New Zealand and obtain refugee status as a Christian convert was obviously well known to GH. Until that objective was achieved he had every motive to continue to attend church so as not to arouse suspicion and to support the appellant in her claim.

[43] Mr McAnally submitted that the Authority had wrongly rejected the minister's evidence and had been led to do so by the adverse view it had formed of Ms X as a result of taking into account its findings in relation to Ms X's sister-in-law and brother AB. It would be putting it too highly to describe the Authority's treatment of the minister's evidence as a rejection of it. The Authority accepted the minister's truthfulness. Its finding was essentially that, although the minister himself had been led to believe that Ms X's conversion was a sincere one he was not really in a position to make that assessment.

[44] The Authority did not go so far as to completely reject the possibility of the conversion being sincere but considered that the motivation for it was not spiritual but pragmatic:

[133] The appellant's Christian faith is her passport to the desired goal of a life outside Iran. Although she has not been truthful about her adoption of Christianity in Korea, in the Authority's assessment, she is nonetheless strongly motivated to be a Christian in the sense that she associates Christianity with western freedoms and lifestyle and enabling her to remain in this country. This plus her exposure to Christian doctrine over time may make it artificial to talk of the "genuineness" or "falsity" of her professed adherence to Christianity. It is possible that the appellant sincerely wants to be a Christian and in so wanting can be regarded as such.

[134] The Authority finds, however, that the appellant's Christian faith is essentially instrumental in that it is intimately tied up with her endeavour to create a new life for herself outside Iran. It has not been pursued for spiritual reasons It is not a deeply held faith position, the expression of which will bring her to the attention of the Iranian authorities and expose her to a real chance of being persecuted by the Islamic regime.

[45] There is nothing in the decision to suggest that the Authority's assessment of Ms X in relation to her conversion was affected by its previously expressed view of AB. The essence of the Authority's decision in relation to Ms X's conversion is that Ms X lied about important aspects of it. Those aspects were ones that the Authority was entitled to take into account in deciding whether Ms X was likely to be at risk of persecution as a result of her conversion. There is no realistic prospect of Ms X showing that the conclusion that the Authority reached was not open to it on the information that it had nor that it was reached as a result of the influence of its findings about AB.

Failure to take into account prior harassment of family

[46] Ms X's account of her life to the Authority included statements that her father, who had previously been dismissed from his position as an army officer, had been harassed and that his negative profile had led his older sons to be excluded from state university or employment. She related that following AB's speech at the World Earth Human Alliance Festival in October 2002 her father and youngest brother, CD, were taken for questioning by the Ettela'at. Concerned about CD's safety the father arranged for CD to leave Iran on a false passport. CD joined two of his brothers (including AB) in Korea. He was introduced to his brothers' church and a month later CD and EF travelled to New Zealand using false passports. The third brother, GH, who was working in Thailand, returned to Seoul in March 2003 where he and AB were baptised at a Presbyterian church and GH also travelled to New Zealand.

[47] In 2003, Ms X's application to study at a state university in Tehran was declined without explanation but was assumed to be related to her father's background and brothers' conversion to Christianity. She unsuccessfully applied for a position at a state bank, being told she was not permitted to hold such a position. At that point she decided to leave Iran.

[48] Although Ms X's account of her family's harassment prior to her leaving Iran is recorded as part of the summary of her case, the only specific finding on this topic was the rejection at [114] of her claim that her father had been subjected to further questioning in 2007 as a result of her brother CD's conversion. Mr McAnally submitted that the account of harassment of Ms X's family prior to her leaving Iran was neither challenged by the Authority nor taken into account in considering whether Ms X was likely to face persecution when she returned. He contended that, in finding that Ms X was not in danger of persecution in Iran, the Authority had wrongly failed to consider that a degree of persecution had already occurred in the form of her being refused entry to a state university and refused employment at a state bank on the basis that persecution need not involve loss of life or liberty but might include restrictions on other freedoms traditionally guaranteed in democratic society (S v Chief Executive of the Department of Labour & Anor CA18/06 8 May 2007; Chan v Minister of Immigration & Ethnic Affairs (1989) 165 CLR 379).

[49] I do not consider that any contestable issue arises in relation to this aspect of the case. First, the final submissions made to the Authority on behalf of Ms X show that her claim for asylum was made on the basis that she was at risk because of the adverse political and religious beliefs of her brothers (particularly AB) and her own Christian conversion. There was almost no reference in the submissions to the fact that she had been refused entry to the university and refused employment with a state bank, the only ways in which it was suggested that she personally had suffered at the hands of the Iranian authorities.

[50] Secondly, the reason given for her family being harassed was primarily AB's speech and conversion to Christianity, which the Authority had already rejected when it considered AB's position. It is artificial to suggest that the Authority should, having found that AB was not wanted by the Iranian Authorities and was not at risk in Iran, consider whether Ms X's family had been harassed because he was.

Conclusion

[51] I do not accept that there is any real contest on the issues that Ms X relies on. In particular:

a) There is no basis for asserting that the Authority took into account findings that related solely to Ms X's sister-in-law. The findings that are relied on relate respectively to Ms X herself (the agent) and to AB;

b) It is not tenable to suggest that the Authority could not consider AB's failure to release full details of his travel movements, failure to seek asylum in New Zealand, his business commitments in Korea and his conversion to Christianity. Ms X relied on AB's circumstances to support her claim and these were relevant aspects of his circumstances;

c) There is no basis on which it could realistically be shown that the Authority was influenced in its assessment of Ms X's credibility by its rejection of AB's assertions. The decision shows that it considered Ms X's own evidence independently of these issues and the decision disclosed an assessment based on lies told about important aspects of her conversion.

[52] As to the consideration said to have wrongly been overlooked, namely the previous harassment of Ms X's family, it is clear that Ms X's appeal was never advanced on the basis of such harassment amounting to either actual persecution of her or amounting to a risk of persecution on her return to Iran, but only as evidence of the effect that AB's activities had had on the family. However, it is artificial to suggest that there could be a real issue over the Authority's failure to consider this aspect given that the Authority had rejected the claims about AB's activities.

[53] In these circumstances I find that there is no real contest between the parties that would justify granting interim relief. The application is therefore dismissed.